Do Illinois Courts Honor Prenuptial Agreements During the Divorce Process?

This is a question with a complex answer. While a prenuptial agreement (often called a prenup) seems on the surface to be a legally binding document (and it sometimes is), there may be occasions when the court is less inclined to abide by it and may deem it unenforceable in cases like those, that could drastically change the division of assets and how the divorce is settled.

However, if the prenup is found to be legally binding, the court is likely to enforce it. One or the other spouse’s saying they’ve changed their mind is not necessarily enough to have the prenup thrown out.

What Are Situations That Would Cause a Prenuptial Agreement to be Unenforceable in Illinois Courts?

There are several situations that could lead to a prenup being unenforceable in court.

  • The prenup must be in writing and signed by both parties. Oral or video/audio footage is not valid.
  • The prenup must not have been forced on one spouse by the other. For example, one spouse should not have forced the other to sign it the night before the wedding.
  • Both parties should have been in sound mind at the time they signed the prenup. For example, if one spouse was under the influence of drugs or alcohol, their signature may not make the agreement binding.
  • Both parties should have fully disclosed all assets and debts to each other. Keeping debts or assets hidden can invalidate the prenup. However, each spouse can waive the right to review the other’s financial data. But if one spouse doesn’t waive that right and the other doesn’t provide that data, the prenup could be considered invalid.
  • The prenup can’t be deemed significantly unfair to one spouse or cause one to need public assistance once the divorce is finalized. One example is if one spouse entered a clause saying they refuse to pay financial support to the other spouse if that spouse becomes the custodial parent of any children born in the marriage. The court may find that significantly unfair, especially if the paying spouse earns a reasonable income.

What Items Can and Should Be Included in a Prenuptial Agreement?

There are several that should be included after the couple has thoroughly discussed them. It’s best if each spouse has their own prenuptial attorney to advise them on what should or shouldn’t be included and help them with negotiation.

  • Asset and debt division. This should cover what each spouse brings to the marriage, along with any assets or debts accrued during the marriage. It can include bank and investment accounts, real estate, vehicles, and valuables such as jewelry or artwork.
  • Personal vs. marital property. If either spouse comes to the marriage with assets they want to keep separate from the marriage, those can be included here.
  • Alimony. The prenup can name the spouse that will pay the other spouse alimony (also known as spousal support) if the marriage is dissolved (and both have agreed to the payments).
  • Ownership or management of any businesses.
  • Children from a previous marriage. In these cases, a prenup may act as a foundation for estate planning. Each parent with children from a previous marriage may detail how they’d want their share of an estate distributed not just to their spouse but to their children. This is helpful in blended families.
  • Dispute resolution. Should the marriage break down, things can become emotional and acrimonious quickly. Some couples specify that if they can’t agree at the time of divorce, they will undergo mediation before considering a divorce trial. A trial could be lengthy, costly, and even more stressful.

What Should Not Be Included in a Prenup?

Just as there are items that should be included in a prenup, there are also some that should not. Some are not legal and could definitely influence the court when it considers whether or not to enforce the prenup.

  • Parental responsibilities. Formerly known as child custody (both legal and physical), this relates to significant decisions around how any children will be raised and where the children will live if the parents divorce. This must not be in a prenuptial. It’s a separate part of the divorce process; any reference to it in a prenup won’t be valid.
  • Personal choice/daily living decisions. Prenups are essentially business documents. They’re not meant to handle personal decisions, such as how the couple divides roles and responsibilities in the marriage. It can’t include things like where the couple will live, how they’ll raise any children or other topics such as religious beliefs.
  • Illegal or unethical requirements. The prenup must not require either spouse to do things that are entirely illegal or violate public policy.

What Should I Do if I Need Help with a Divorce Involving a Prenuptial Agreement?

Call the Law Offices of Robert Buchanan at 312-757-4833 for a no-obligation case evaluation. Divorce is one of life’s most stressful events, and if there’s a prenup that’s under dispute, it can be even more challenging. Couples usually create a prenuptial agreement under the assumption that they’ll never need to use it. But when they do need it, they don’t always agree to the previously completed compromises that led to the agreement. Our team of experienced, knowledgeable prenup and divorce attorneys can help you understand the enforceability of your agreement and provide advice for the best approach to pursue.